Preliminaries and contemporary procurement

With the construction industry adopting design and build, partnering, or PFI procurement for certain sized projects, NBS is consulting with subscribers to understand and formulate proposals that address the particular challenges associated with these procurement routes. A workshop on preliminaries was held as a step in this investigation. Stuart Doran, NBS Preliminaries coordinator, reports.

Traditional preliminaries

In traditional procurement it has been common practice for the preliminaries clauses to be compiled by a quantity surveyor. Many NBS subscribers, some of them large consultancies, specialize in this work. Difficulties can be caused if communication between the various members of the procurement team is clouded. Common problems are:

the extent of contractor design being at variance with the extent of the consultants’ design duties

design proposals being changed after agreement

key information being omitted from the preliminaries.

Non-traditional preliminaries

With design and build, partnering and PFI, the situation can become more clouded. Different sets of preliminaries could be compiled by different agents, for use with specialist agreements, conditions and subcontracts and the main building contract. The separate preparation of the preliminaries and the technical specification presents a challenge to joined-up design-and-build activities. At each stage, coordination must ensure the protection of design quality and the management of changes aimed at cost control.

Client relationship

For many clients the project is a once-in-a-lifetime activity. The design team has the task of communicating all the necessary information for clients to make informed decisions. There is often a lack of proficiency on the client side with many, especially public sector, thinking it is easy to ‘buy in’ design expertise without realizing they need to know how to formulate their requirements and evaluate the proposals. Clients, particularly in the public sector, are being driven down non-traditional routes, often by funders, as a matter of policy rather than because of the merits in each case. Although design and build is frequently the solution it is not necessarily the goal – single point responsibility is often what the funders are seeking. Inexperienced clients often overestimate the risk to themselves, and try to pass it on to others, particularly the contractor, without understanding the cost implications. Problems can be exacerbated when writing preliminaries for bespoke forms of procurement.

With traditional procurement the designer is responsible for design and the contractor for execution, so responsibility for coordination of subcontract packages lies firmly with the contractor. This distinction is blurred where the designer is a subcontractor to the main contractor and designing for work packages. The specific duties of the designer should be stated in the engagement contract but there could still be a legal duty of care to advise the client. For example, CDM Regulations place a duty on designers to provide a safe means of constructing the project irrespective of who the designer is working for.

NHS trusts employ ‘Trust advisers’ – consultants who act either as advisers to the client, or as design consultants to the Special Purpose Vehicle (SPV) or Principal Supply Chain Partner (PSCP). Part of their duties is to advise on procurement and the preliminaries, with various approvals at the traditional work stages still forming an essential part of the process. Even where the client has a Trust adviser the SPV or PSCP tenders the job, so contractual relationships can differ on every occasion.

With non-traditional procurement routes designers are seen as just part of the construction team, rather than having a more ‘intimate’ relationship with the client. Designers tend to be more remote from the client and end user than they are under traditional arrangements, for both public and private clients. Two-stage design and build facilitates a more ‘mature’ discussion, where the designer can get a better feel for the client’s needs, but this is not often used.

When a consultant designer is appointed, and even when a novation agreement is drawn up, the contractor may not have been engaged. Little is therefore known about how the work is to be procured, which makes it difficult to define and/or finalise the appropriate duties.

Items for further discussion

Consultants, contractors and subcontractors are familiar with the structure of CAWS. The workshop felt that substantial changes to CAWS would not address procurement problems but could confuse and lead to extra work for no gain.

Preliminaries and work sections must work together to prevent duplication, contradiction and omission. If a work package has its own preliminaries, these must be read in conjunction with the main contract preliminaries for issues that are project wide. Sometimes work package preliminaries have to be written without knowing what the main contractor’s precise sequence of work is likely to be. If the works include phased completion, then ‘preliminaries’ requirements may vary with the trade carrying out the work. The issue of packaging can be addressed within the existing NBS structure.

One solution could be to have a ‘general’ preamble for the whole specification with a ‘discursive’ description at the beginning of each package defining its ‘intent’. This could include ‘design development’ issues, or revolve around a ‘design risk’ register, and is likely to vary with the type of work in the package.

Other possible solutions:

A set of preliminaries clauses linked to the work sections, so designers can control the information sent to contractors where the designers do not compile the preliminaries and wish to contractually define the extent of their responsibilities

A single ‘preamble’ which might be included on a drawing, before a work package or bill of quantities, but cross referenced to the main contract preliminaries and to the package contract

A ‘preamble’, located within the work sections, comprising a series of headings to be used to help designers communicate with the contractor

A standalone set of preliminaries for a work package, indicating items that are package-specific and different to those carried out by the main contractor.

The problem is deciding what should stay in preliminaries and what should go into the work sections. This is different in each scenario and may also be different between packages. Most content could be extracted from A-group sections, but under the same section and clause headings, though additional clauses may be required in some circumstances. The reports function could achieve some of the above without the need to create separate sets of preliminaries. The workshop felt very strongly that the input of contractors should also be sought, before any conclusions were drawn. Consultants believe there is a shortfall in information that gets through to the subcontractor and/or end user, but they do not know how contractors regard this. It may be, for example, that information produced by consultants is completely disregarded, or not ranked as highly important.

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